Legislation introduced to invalidate CWA proposed rule

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The Environmental Protection Agency and the Army Corp of Engineers continue to be in hot water on Capitol Hill over the proposed rule expanding federal jurisdiction over “waters of the United States.” The National Cattlemen’s Beef Association and the Public Lands Council applaud the efforts of Rep. Southerland (R-Fla.) today to invalidate this rule.

Under the proposal, nearly all waters in the country will be subject to regulation, regardless of size or continuity of flow. Southerland’s bill H.R. 5078 Waters of the United States Regulatory Overreach Protect Act halts any action of the EPA and the Corps regarding the proposed definition of “waters of the United States.”

“The EPA continues to claim that their proposal does not expand the reach of the Clean Water Act,” said Bob McCan, NCBA President and Texas cattleman, “but the way the proposal is written, there is no other interpretation. The vague and subjective wording gives regulators the authority and access to nearly any water, and with it, all land use activities including ranching.”

For the first time, ditches are included in the definition of a “tributary” and many will now come under federal jurisdiction. Activities near a jurisdictional ditch will now require a federal permit. As a result, many cattle operations will be required to get Sec. 402 National Pollutant Discharge Elimination System permits, Sec. 404 Dredge and Fill permits or Sec. 311 Spill Prevention Control, and Countermeasure spill plans.

The bill also includes a provision previously offered as stand-alone legislation by Rep. Ribble (R-Wis.) that will invalidate the “interpretive” rule, which attempts to define and interpret the “normal farming, silviculture and ranching activities” exemptions under Sec. 404 of the Clean Water Act.

According to the EPA, the 56 exempted NRCS practices, including prescribed grazing, were chosen because they have the potential to discharge if they are done in a “water of the U.S.” Effectively, the agencies have made cattle grazing a discharge activity, forcing cattle producers to obtain a NRCS-approved grazing plan or else be subjected to the 404 permitting scheme and the penalties under the Clean Water Act. 

“This proposal takes the authority Congress granted EPA far beyond the scope of Congressional intent,” said Public Lands Council President Brice Lee, a Colorado rancher. “Not only is this illegal, but it clearly disregards the Supreme Court's interpretation of the Clean Water Act jurisdiction. We appreciate Mr. Southerland and Mr. Ribble’s efforts to prevent the agencies from finalizing this regulation, which we see as the largest federal land grab in history.”

NCBA and PLC strongly support this legislation and encourages the House to pass this bill, protecting the rights of private property owners across the country.



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